Monday, March 12, 2012

Ted White Q&A: Follow Up on Marshall Court & Intellectual History

Last week's Q&A with Ted White featured an exchange about the Marshall Court and Cultural Change, initiated by Al Brophy (UNC-law). The exchange continues.

Brophy's Follow-up Comment: One of the things I really like about MCACC is the focus on "republicanism" as a construct. I'm curious about what's cause and effect here. How much did the ideas about republicanism serve to guide what the Court did? Or is discussion of "republicanism" really more about helping us understand what the Court did? That is, is republicanism a producer of ideas and action or more a description of them? Second, and related, your interpretation of the Marshall Court is very idea-centered. Do you think that the Taney Court was as idea-centered as the Marshall Court or was it driven more by economics or something else?

White's Response: For me the best way to understand republicanism is as a "grand theory" that encompasses social, political, and economic issues and is premised on certain starting assumptions. It is a "premodern" theory in that it ascribes causal significance to forces and entities other than the conscious acts of humans holding power--'nature,' a Christian deity, the cyclical course of history, the relatively fixed quality of status distinctions. It also holds a conception of governance that emphasizes the tendency of humans to be self-interested and to be unable to restrain their 'passions' without governmental checks, and for governments to inevitably degenerate into tyranny and 'luxury'--the pursuit of private gain by officeholders--unless structured to protect against those tendencies. Actors sharing a 'republican' sensibility can agree with one another on some issues--the tyranny of monarchical governments--but disagree with one another on a range of others. I treat the Marshall Court as a 'republican' institution in that sense, and try to identify issues, such as the scope of federal powers, the nature and content of 'natural' rights, the appropriate balance among branches of government, the power of the states to regulate private economy activity, that were deeply contested for early nineteenth century Americans and came before the Court. The Court is thus seen as an institution whose justices's first premises about society and government are 'republican,' but whose views on concrete issues approximate the contested views of their contemporaries. I am not sure that this approach treats republicanism as a "producer" of ideas and actions or a "description" of them. It is more like a framework in which the Court's decisions on a whole range of issues was set.

I don't think one can approach the role of economic developments in American history independently from the ideas about economic activity that accompanied them. I wouldn't call some Courts more 'idea-centered' than others. To take just one example, the Taney Court and the Marshall Court both entertained the Charles River Bridge case, raising the question whether a state legislature, once it had granted an exclusive franchise to a transportation industry (in this instance a bridge) without reserving the right subsequently to modify the terms of its charter, could (in the form of a successor) grant another franchise in the same industry to a competitor. The case starkly posed a conundrum for persons approaching economic issues from a 'republican' perspective. To allow a competitive franchise undermined 'vested rights,': it was the equivalent of a legislature's taking property from A and giving it to B, a principle that early nineteenth-century courts and commentators thought inconsistent with 'the nature of things,' or "free republican governments." On the other hand, to grant exclusivity in the transportation sector would mean that as the population and territory of the American nation expanded, the first comers in that sector could block 'improvements' that might result from competition, thereby standing in the way of economic 'progress.' My analysis of the Marshall Court's treatment of Charles River Bridge concludes that that Court just couldn't resolve the conundrum, and kept postponing the decision. Once Marshall (and William Johnson) died in the mid 1830s, and new justices came on the (now Taney)Court, a majority emerged in support of allowing a legislature to charter competitors to its previous exclusive charterees. Whether that happened because by the late1830s it had become clear that rapid development in the transportation industry was necessary to populate new chunks of territory with a growing population, or whether the idea of security for franchiseholders and their investors had diminished in importance, seems to me a chicken-and-egg question. In short, I try not to separate forms of economic activity from ideas about the cultural importance of those forms.

1 comment:

Does the Taney Court's Charles River Bridge case decision square with originalism? (I understand that some scholars consider that CJ Taney's opinion in Dred Scott was an early Court example of originalism.)